The Supreme Court has this week ruled that legal permission is not required before life support is withdrawn from patients in a persistent vegetative state if both their family and doctors believe that their treatment should be discontinued.
This judgment has come in the case of An NHS Trust and others (Respondents) v Y (by his litigation friend, the Official Solicitor) and another (Appellants). It is not only an important legal discussion but also the story of a family who has lost a loved one. As the patient, Mr Y, passed away due to acute respiratory sepsis before the case could be decided, it is poignant that the outcome has no bearing now on his life. It may however give the family some comfort to know that they have helped other families who find themselves in the same position to be able to make a choice in the interests of the person they are losing.
The question asked was not whether it was in Mr Y’s best interests for clinically assisted nutrition and hydration (CANH) to be withdrawn, but whether the court had to be consulted before CANH is withdrawn where the patient has a prolonged disorder of consciousness. Mr Y’s family held that it was not in his best interests to continue to receive CANH, and the medical professionals involved in his care agreed. Mr Y had lost consciousness following a heart attack in June 2017 and his family did not feel he would have wanted to continue to exist in such a state.
The judgment handed down on Monday 30 July by Lady Black confirms that there is no legal mandatory requirement ‘to involve the court to decide upon the best interests of every patient with a prolonged disorder of consciousness before CANH can be withdrawn’. It must be assumed that the principles of best interests decision making established in the Mental Capacity Act 2005 (MCA 2005) will be followed, and therefore if all those involved in the patient’s care and interested in their welfare are in agreement then there is no requirement to involve the court as well. It is noted, however, that where there is any element of doubt the court should be involved to ensure the correct decision is reached.
In Lady Black’s judgement, a summary of the case law prior to the introduction of the MCA 2005 shows the consideration that has been given to the authority of the courts over medical decisions. This emphasises that it is not for judges to authorise medical decisions but to declare that a proposed action is legal. The reference at points to the mutual professional respect that must exist between medical and legal professionals, and also family members, is quite central to this issue. The approach to collaborative decision making introduced by MCA 2005 must be protected to ensure the best interest decision making process is effective; no one person has autonomy to decide as they please, mutual respect must exist to ensure a decision can be reached in an incapacitated person’s best interests.
As medical abilities have progressed and improved, a legal and moral consideration is required of when, how and by whom the manner of a person’s death can be decided. Lord Browne-Wilkinson noted in Airedale NHS Trust v Bland  AC 789 that recent medical developments had ‘…fundamentally affected previous certainties about what was life and what was death, and meant that the time and manner of someone’s death might no longer be dictated by nature but might instead be determined by a human decision’.
The introduction of MCA 2005 gave some structure to this human decision, and Lady Black’s judgment feels supportive of that structure. Best interest decisions are made every day by a collaboration of family members and professionals, and although arguably none are more important than the decision to bring about a person’s death, it is essential that the structure that allows these decisions to be made inspires confidence in those that rely on it to shape their lives, and perhaps their deaths.